N.Y. Tax Law § 1101: Definitions

§ 1101. Definitions. (a) When used in this article the term "person"

includes an individual, partnership, limited liability company, society,

association, joint stock company, corporation, estate, receiver,

trustee, assignee, referee, and any other person acting in a fiduciary

or representative capacity, whether appointed by a court or otherwise,

and any combination of the foregoing.

(b) When used in this article for the purposes of the taxes imposed by

subdivisions (a), (b), (c) and (d) of section eleven hundred five and by

section eleven hundred ten, the following terms shall mean:

(1) Purchase at retail. A purchase by any person for any purpose other

than those set forth in clauses (A) and (B) of subparagraph (i) of

paragraph (4) of this subdivision.

(2) Purchaser. A person who purchases property or to whom are rendered

services, the receipts from which are taxable under this article,

including a mobile telecommunications customer.

(3) Receipt. (i) The amount of the sale price of any property and the

charge for any service taxable under this article, including gas and gas

service and electricity and electric service of whatever nature, valued

in money, whether received in money or otherwise, including any amount

for which credit is allowed by the vendor to the purchaser, without any

deduction for expenses or early payment discounts and also including any

charges by the vendor to the purchaser for shipping or delivery, and,

with respect to gas and gas service and electricity and electric

service, any charges by the vendor for transportation, transmission or

distribution, regardless of whether such charges are separately stated

in the written contract, if any, or on the bill rendered to such

purchaser and regardless of whether such shipping or delivery or

transportation, transmission, or distribution is provided by such vendor

or a third party, but excluding any credit for tangible personal

property accepted in part payment and intended for resale. For special

rules governing computation of receipts, see section eleven hundred

eleven of this article.

(ii) Receipt shall include consideration received by the vendor from

third parties if:

(A) The vendor receives consideration from a third party and the

consideration is directly related to a rebate, discount or similar price

reduction on the sale;

(B) The vendor has an obligation to pass such consideration through to

the purchaser in the form of a rebate, discount or similar price

reduction;

(C) The amount of the consideration to be paid by the third party is

fixed and determinable by the vendor at the time of the sale of the

property or service to the purchaser; and

(D) One of the following criteria is met:

(I) the purchaser presents a coupon, certificate or other

documentation to the vendor to claim a rebate, discount or similar price

reduction where the coupon, certificate or documentation is authorized,

distributed or granted by a third party with the understanding that the

third party shall reimburse any vendor to whom the coupon, certificate

or documentation is presented;

(II) the purchaser presents identification as a member of a group or

organization entitled to a rebate, discount or similar price reduction;

or

(III) the rebate, discount or similar price reduction is identified as

a third party rebate, discount or similar price reduction on the invoice

received by the purchaser or on a coupon, certificate or other

documentation presented by the purchaser.

(iii) Subparagraph (ii) of this paragraph shall not apply to rebates,

discounts or similar price reductions that are reimbursed by a third

party on sales of motor vehicles.

(iv) For the purposes of subclause (II) of clause (D) of subparagraph

(ii) of this paragraph, "identification as a member of a group or

organization entitled to a rebate, discount or similar price reduction"

shall not include the presentation of a customer loyalty or related

rewards program card.

(4) Retail sale. (i) A sale of tangible personal property to any

person for any purpose, other than (A) for resale as such or as a

physical component part of tangible personal property, or (B) for use by

that person in performing the services subject to tax under paragraphs

(1), (2), (3), (5), (7) and (8) of subdivision (c) of section eleven

hundred five where the property so sold becomes a physical component

part of the property upon which the services are performed or where the

property so sold is later actually transferred to the purchaser of the

service in conjunction with the performance of the service subject to

tax. Notwithstanding the preceding provisions of this subparagraph, a

sale of any tangible personal property to a contractor, subcontractor or

repairman for use or consumption in erecting structures or buildings, or

building on, or otherwise adding to, altering, improving, maintaining,

servicing or repairing real property, property or land, as the terms

real property, property or land are defined in the real property tax

law, is deemed to be a retail sale regardless of whether the tangible

personal property is to be resold as such before it is so used or

consumed, except that a sale of a new mobile home to a contractor,

subcontractor or repairman who, in such capacity, installs such property

is not a retail sale. Notwithstanding the preceding provisions of this

subparagraph, the purchase of a truck, trailer or tractor-trailer

combination for rental or lease to an authorized carrier, as described

in paragraph twenty-two of subdivision (a) of section eleven hundred

fifteen, shall be deemed a retail sale.

(ii) Notwithstanding the provisions of subparagraph (i) of this

paragraph, no motor fuel or diesel motor fuel shall be sold or used in

this state without payment, and inclusion in the sales price of such

motor fuel, of the tax on motor fuel required to be prepaid pursuant to

the provisions of section eleven hundred two of this article except

where a provision of this article relating to motor fuel or diesel motor

fuel specifically provides otherwise and except in the case of a sale or

use subject to tax under section eleven hundred five or eleven hundred

ten, respectively, of this article. Provided, however, except for such

requirement of prepayment of tax required by section eleven hundred two

of this article, the provisions of this subparagraph shall not otherwise

modify the meaning of the term "retail sale" as used in this article.

For purposes of this subparagraph and sections eleven hundred two,

eleven hundred eleven, eleven hundred twenty, eleven hundred thirty-two,

eleven hundred thirty-four, eleven hundred thirty-five, eleven hundred

thirty-six, eleven hundred forty-two, eleven hundred forty-five and

eighteen hundred seventeen of this chapter, the following terms shall

have the following meanings:

(A) "Petroleum products" means diesel motor fuel as defined in

subdivision fourteen of section two hundred eighty-two of this chapter,

other than kerosene or propane used for residential purposes, or motor

fuel as defined in subdivision two of section two hundred eighty-two of

this chapter. The phrase "used for residential purposes" shall have the

same meaning as it has for purposes of section eleven hundred five-A of

this article.

(B) The term "distributor" shall have the same meaning as it has for

purposes of article twelve-A of this chapter, excluding persons who are

not required pursuant to section two hundred eighty-two-a to pay the tax

imposed thereby.

(C) The term "motor fuel" means motor fuel as defined in subdivision

two of section two hundred eighty-two of this chapter.

(D) The terms "filling station", "terminal" and "owner" shall have the

same meaning as they have for the purposes of article twelve-A of this

chapter.

(E) The term "diesel motor fuel" means diesel motor fuel as defined in

subdivision fourteen of section two hundred eighty-two of this chapter.

(F) The terms "highway diesel motor fuel" and "non-highway diesel

motor fuel" shall have the same meaning as they have for purposes of

article twelve-A of this chapter.

(iii) Notwithstanding the provisions of subparagraph (i) of this

paragraph, no cigarettes shall be sold or used in this state without

payment, and inclusion in the sales price of such cigarettes, of the tax

on cigarettes required to be prepaid pursuant to the provisions of

section eleven hundred three of this article except where a provision of

this article relating to cigarettes specifically provides otherwise and

except in the case of a sale or use subject to tax under section eleven

hundred five or eleven hundred ten, respectively, of this article.

Provided, however, except for such requirement of prepayment of tax

required by section eleven hundred three of this article, the provisions

of this subparagraph shall not otherwise modify the meaning of the term

"retail sale" as used in this article. For purposes of this subparagraph

and sections eleven hundred three, eleven hundred eleven, eleven hundred

fifteen, eleven hundred sixteen, eleven hundred twenty-one, eleven

hundred thirty-two, eleven hundred thirty-four, eleven hundred

thirty-five, eleven hundred thirty-six, eleven hundred thirty-eight,

eleven hundred forty-two and eleven hundred forty-five of this article

and eighteen hundred seventeen of this chapter, the terms "cigarette,"

"agent" and "package" shall have the same meaning that they have for

purposes of article twenty of this chapter.

(iv) (A) The term retail sale does not include:

(I) The transfer of tangible personal property to a corporation,

solely in consideration for the issuance of its stock, pursuant to a

merger or consolidation effected under the law of New York or any other

jurisdiction.

(II) The distribution of property by a corporation to its stockholders

as a liquidating dividend.

(III) The distribution of property by a partnership to its partners in

whole or partial liquidation.

(IV) The transfer of property to a corporation upon its organization

in consideration for the issuance of its stock.

(V) The contribution of property to a partnership in consideration for

a partnership interest therein.

(B) For an exception applicable to this subparagraph, see subdivision

(q) of section eleven hundred eleven of this article.

(v) Notwithstanding the provisions of subparagraph (i) of this

paragraph, the following sales of tangible personal property shall be

deemed to be retail sales: (A) a sale to a single member limited

liability company or a subsidiary for resale to its member or owner,

where such single member limited liability company or subsidiary is

disregarded as an entity separate from its owner for federal income tax

purposes (without reference to any special rules related to the

imposition of certain federal taxes), including but not limited to

certain employment and excise taxes; (B) a sale to a partnership for

resale to one or more of its partners; or (C) a sale to a trustee of a

trust for resale to one or more beneficiaries of such trust.

(5) Sale, selling or purchase. Any transfer of title or possession or

both, exchange or barter, rental, lease or license to use or consume

(including, with respect to computer software, merely the right to

reproduce), conditional or otherwise, in any manner or by any means

whatsoever for a consideration, or any agreement therefor, including the

rendering of any service, taxable under this article, for a

consideration or any agreement therefor.

(6) Tangible personal property. Corporeal personal property of any

nature. However, except for purposes of the tax imposed by subdivision

(b) of section eleven hundred five of this article, such term shall not

include gas, electricity, refrigeration and steam. Such term shall also

include pre-written computer software, whether sold as part of a

package, as a separate component, or otherwise, and regardless of the

medium by means of which such software is conveyed to a purchaser. Such

term shall also include newspapers and periodicals where the vendor

ships or delivers the entire edition or issue of the newspaper or

periodical, with or without the advertising included in the paper

edition or issue, but not including anything, other than advertising,

not in such paper edition or issue, to the purchaser by means of

telephony or telegraphy or other electronic media, but only where the

amount of the sale price to such purchaser of such newspaper or magazine

or the subscription price, in the case of a subscription to a newspaper

or periodical, including any charge by such vendor for shipping or

delivery to the purchaser, is separately stated to such purchaser.

However, such term shall not include a modular home that is permanently

affixed to real property, provided that, if a modular home is to be

removed from the realty, whether as a whole or disassembled, it and its

component parts shall be tangible personal property whether it is to be

sold as a whole or as pieces.

(7) Use. The exercise of any right or power over tangible personal

property or over any of the services which are subject to tax under

section eleven hundred ten of this article or pursuant to the authority

of article twenty-nine of this chapter, by the purchaser thereof, and

includes, but is not limited to, the receiving, storage or any keeping

or retention for any length of time, withdrawal from storage, any

installation, any affixation to real or personal property, or any

consumption of such property or of any such service subject to tax under

such section eleven hundred ten or pursuant to the authority of such

article twenty-nine. Without limiting the foregoing, use also shall

include the distribution of only tangible personal property, such as

promotional materials, or of any such service subject to tax under such

section eleven hundred ten or pursuant to the authority of such article

twenty-nine.

(8) Vendor. (i) The term "vendor" includes:

(A) A person making sales of tangible personal property or services,

the receipts from which are taxed by this article;

(B) A person maintaining a place of business in the state and making

sales, whether at such place of business or elsewhere, to persons within

the state of tangible personal property or services, the use of which is

taxed by this article;

(C) A person who solicits business either:

(I) by employees, independent contractors, agents or other

representatives; or

(II) by distribution of catalogs or other advertising matter, without

regard to whether such distribution is the result of regular or

systematic solicitation, if such person has some additional connection

with the state which satisfies the nexus requirement of the United

States constitution;

and by reason thereof makes sales to persons within the state of

tangible personal property or services, the use of which is taxed by

this article;

(D) A person who makes sales of tangible personal property or

services, the use of which is taxed by this article, and who regularly

or systematically delivers such property or services in this state by

means other than the United States mail or common carrier;

(E) A person who regularly or systematically solicits business in this

state by the distribution, without regard to the location from which

such distribution originated, of catalogs, advertising flyers or

letters, or by any other means of solicitation of business, to persons

in this state and by reason thereof makes sales to persons within the

state of tangible personal property, the use of which is taxed by this

article, if such solicitation satisfies the nexus requirement of the

United States constitution;

(F) A person making sales of tangible personal property, the use of

which is taxed by this article, where such person retains an ownership

interest in such property and where such property is brought into this

state by the person to whom such property is sold and the person to whom

such property is sold becomes or is a resident or uses such property in

any manner in carrying on in this state any employment, trade, business

or profession;

(G) Any other person making sales to persons within the state of

tangible personal property or services, the use of which is taxed by

this article, who may be authorized by the commissioner of taxation and

finance to collect such tax by part IV of this article;

(H) The state of New York, any of its agencies, instrumentalities,

public corporations (including a public corporation created pursuant to

agreement or compact with another state or Canada) or political

subdivisions when such entity sells services or property of a kind

ordinarily sold by private persons; and

(I) A seller of tangible personal property or services, the use of

which is taxed by this article if either (I) an affiliated person that

is a vendor as otherwise defined in this paragraph uses in the state

trademarks, service marks, or trade names that are the same as those the

seller uses; or (II) an affiliated person engages in activities in the

state that inure to the benefit of the seller, in its development or

maintenance of a market for its goods or services in the state, to the

extent that those activities of the affiliate are sufficient to satisfy

the nexus requirement of the United States constitution. For purposes of

this clause, "affiliated person" has the same meaning as in clause (B)

of subparagraph (v) of this paragraph. Nothing in this clause shall be

construed to narrow the scope of any other provision in this paragraph.

Notwithstanding the provisions of this clause, the activities in the

state of an affiliated person in providing accounting or legal services

or advice to a seller, or in directing the activities of a seller,

including, but not limited to, making decisions about (a) strategic

planning, (b) marketing, (c) inventory, (d) staffing, (e) distribution,

or (f) cash management, will not result in making the seller a vendor

under this paragraph.

(ii) (A) In addition, when in the opinion of the commissioner it is

necessary for the efficient administration of this article to treat any

salesman, representative, peddler or canvasser as the agent of the

vendor, distributor, supervisor or employer under whom he operates or

from whom he obtains tangible personal property sold by him, or for whom

he solicits business, the commissioner may, in his discretion, treat

such agent as the vendor jointly responsible with his principal,

distributor, supervisor or employer for the collection and payment over

of the tax. An unaffiliated person providing fulfillment services to a

purchaser shall not be treated as a vendor by the commissioner under

this paragraph with respect to such activity. For purposes of this

clause, persons are affiliated persons with respect to each other where

one of such persons has an ownership interest of more than five percent,

whether direct or indirect, in the other, or where an ownership interest

of more than five percent, whether direct or indirect, is held in each

of such persons by another person or by a group of other persons which

are affiliated persons with respect to each other.

(B) A person shall be deemed a vendor of the services enumerated in

paragraph nine of subdivision (c) of section eleven hundred five of this

article, liable for all the obligations of a vendor, including the

collection, reporting and remittance of the tax imposed under this

article and possessing all the rights of a vendor including the right to

an exclusion or a credit or refund of tax as provided in subdivision (e)

of section eleven hundred thirty-two of this article, with respect to

such services which are provided by a vendor thereof and are subject to

taxation under this article, where such person, its affiliate or agent

bills, on behalf of such vendor, either (I) as part of, or as a schedule

to, the statement of such person to its purchasers or (II) separately

(without regard to whether or not such person has customers of its own),

such enumerated services provided by such vendor. For the purpose of

this paragraph, "affiliate" means an entity which directly, indirectly

or constructively controls a vendor of such enumerated services or is

controlled by such vendor or is under the control of, along with such

vendor, a common parent. Provided, however, the provisions of this

clause shall not in any way be construed to otherwise limit or remove

the obligations and liabilities of any person with respect to the tax

imposed by this article.

(iii) For purposes of clause (D) of subparagraph (i) of this

paragraph, a person shall be presumed to be regularly or systematically

delivering property or services in this state if the cumulative total

number of occasions such person or his agent came into the state to

deliver property or services exceeded twelve during the preceding four

quarterly periods ending on the last day of February, May, August and

November, unless such person can demonstrate, to the satisfaction of the

commissioner, that he cannot reasonably be expected to come into the

state for such purposes on more than twelve occasions during the next

succeeding four quarterly periods ending on the last day of February,

May, August and November.

(iv) For purposes of clause (E) of subparagraph (i) of this paragraph,

a person shall be presumed to be regularly or systematically soliciting

business in this state if, for the immediately preceding four quarterly

periods ending on the last day of February, May, August and November,

the cumulative total of such person's gross receipts from sales of

property delivered in this state exceeds five hundred thousand dollars

and such person made more than one hundred sales of property delivered

in this state, unless such person can demonstrate, to the satisfaction

of the commissioner, that he cannot reasonably be expected to have gross

receipts in excess of five hundred thousand dollars or more than one

hundred sales of property delivered in this state for the next

succeeding four quarterly periods ending on the last day of February,

May, August and November.

(v) Notwithstanding any other provision of law, the term vendor shall

not include:

(A) a person who is not otherwise a vendor who purchases fulfillment

services carried on in New York by a person other than an affiliated

person; or

(B) a person who is not otherwise a vendor who owns tangible personal

property located on the premises of an unaffiliated person performing

fulfillment services for such person.

For purposes of this subparagraph, persons are affiliated persons with

respect to each other where one of such persons has an ownership

interest of more than five percent, whether direct or indirect, in the

other, or where an ownership interest of more than five percent, whether

direct or indirect, is held in each of such persons by another person or

by a group of other persons which are affiliated persons with respect to

each other.

(vi) For purposes of subclause (I) of clause (C) of subparagraph (i)

of this paragraph, a person making sales of tangible personal property

or services taxable under this article ("seller") shall be presumed to

be soliciting business through an independent contractor or other

representative if the seller enters into an agreement with a resident of

this state under which the resident, for a commission or other

consideration, directly or indirectly refers potential customers,

whether by a link on an internet website or otherwise, to the seller, if

the cumulative gross receipts from sales by the seller to customers in

the state who are referred to the seller by all residents with this type

of an agreement with the seller is in excess of ten thousand dollars

during the preceding four quarterly periods ending on the last day of

February, May, August, and November. This presumption may be rebutted by

proof that the resident with whom the seller has an agreement did not

engage in any solicitation in the state on behalf of the seller that

would satisfy the nexus requirement of the United States constitution

during the four quarterly periods in question. Nothing in this

subparagraph shall be construed to narrow the scope of the terms

independent contractor or other representative for purposes of subclause

(I) of clause (C) of subparagraph (i) of this paragraph.

(9) Capital improvement. (i) An addition or alteration to real

property which:

(A) Substantially adds to the value of the real property, or

appreciably prolongs the useful life of the real property; and

(B) Becomes part of the real property or is permanently affixed to the

real property so that removal would cause material damage to the

property or article itself; and

(C) Is intended to become a permanent installation.

(ii) A mobile home shall not constitute an addition or capital

improvement to real property, property or land, regardless of the nature

of its installation.

(iii) Notwithstanding the provisions of subparagraph (i) of this

paragraph: (A) Floor covering, such as carpet, carpet padding, linoleum

and vinyl roll flooring, carpet tile, linoleum tile and vinyl tile,

installed as the initial finished floor covering in new construction or

a new addition to or total reconstruction of existing construction shall

constitute an addition or capital improvement to real property, property

or land; and

(B) Floor covering, such as carpet, carpet padding, linoleum and vinyl

roll flooring, carpet tile, linoleum tile and vinyl tile, installed

other than as described in clause (A) of this subparagraph shall not

constitute an addition or capital improvement to real property, property

or land.

(10) Mobile home. (i) A structure which is:

(A) A type of manufactured housing; and

(B) Not self-propelled; and

(C) Transportable in one or more sections:

(I) that may be folded, collapsed or telescoped when being towed and

expanded later to provide additional cubic capacity, or

(II) that may be separately towable and designed to be joined into one

integral structure capable of being again separated into the sections

for repeated towing; and

(D) Built on a permanent chassis, comprised of frame and wheels, that

is to be connected to utilities; and

(E) Designed to be used as a permanent dwelling, with or without

permanent foundation; and

(F) Used for residential or commercial purposes.

(ii) The term "mobile home" shall also include structures commonly

called "double wides".

(iii) The term "mobile home" shall not include:

(A) Structures designed and constructed primarily for temporary living

quarters, recreations, camping or travel; or

(B) Furniture, fixtures, furnishings, appliances, attachments or

similar tangible personal property not incorporated as component parts

of a mobile home at the time of manufacture.

(11) New mobile home. A mobile home which is sold for the first time

at retail including all components incorporated into such mobile home at

the time of manufacture and remaining unchanged at the time of the first

retail sale thereof.

(12) Promotional materials. Any advertising literature, other related

tangible personal property (whether or not personalized by the

recipient's name or other information uniquely related to such person)

and envelopes used exclusively to deliver the same. Such other related

tangible personal property includes, but is not limited to, free gifts,

complimentary maps or other items given to travel club members,

applications, order forms and return envelopes with respect to such

advertising literature, annual reports, prospectuses, promotional

displays and Cheshire labels but does not include invoices, statements

and the like. Promotional materials shall also include paper or ink

furnished to a printer for use in providing the services of producing,

printing or imprinting promotional materials or in producing, printing

or imprinting promotional materials, where such paper and ink become a

physical component part of the promotional materials and such printer

sells such services or such promotional materials to the person who

furnished the paper and ink to such printer.

(13) Telephone answering service. A service that consists of taking

messages by telephone and transmitting such messages to the purchaser of

the service or at the purchaser's direction, but not including such

service if it is merely an incidental element of a different or other

service purchased by the customer.

(14) Pre-written computer software. Computer software (including

pre-written upgrades thereof) which is not software designed and

developed by the author or other creator to the specifications of a

specific purchaser. The combining of two or more pre-written computer

software programs or pre-written portions thereof does not cause the

combination to be other than pre-written computer software. Pre-written

software also includes software designed and developed by the author or

other creator to the specifications of a specific purchaser when it is

sold to a person other than such purchaser. Where a person modifies or

enhances computer software of which such person is not the author or

creator, such person shall be deemed to be the author or creator only of

such person's modifications or enhancements. Pre-written software or a

pre-written portion thereof that is modified or enhanced to any degree,

where such modification or enhancement is designed and developed to the

specifications of a specific purchaser, remains pre-written software;

provided, however, that where there is a reasonable, separately stated

charge or an invoice or other statement of the price given to the

purchaser for such modification or enhancement, such modification or

enhancement shall not constitute pre-written computer software.

(15) Clothing and footwear. (i) Clothing and footwear to be worn by

human beings, but not including costumes or rented formal wear, and (ii)

fabric, thread, yarn, buttons, snaps, hooks, zippers and like items

which are used or consumed to make or repair such clothing (other than

such costumes or rented formal wear) and which become a physical

component part of such clothing, but not including such items made from

pearls, precious or semi-precious stones, jewels or metals, or

imitations thereof.

(16) Commercial vessel. A vessel used primarily (i) to transport

persons or property, for hire, (ii) by the purchaser of the vessel to

transport such person's tangible personal property in the conduct of

such person's business, or (iii) for both such purposes.

(17) Commercial aircraft. Aircraft used primarily (i) to transport

persons or property, for hire, (ii) by the purchaser of the aircraft to

transport such person's tangible personal property in the conduct of

such person's business, or (iii) for both such purposes. Transporting

persons for hire does not include transporting agents, employees,

officers, members, partners, managers or directors of affiliated

persons. Persons are affiliated persons with respect to each other where

one of the persons has an ownership interest of more than five percent,

whether direct or indirect, in the other, or where an ownership interest

of more than five percent, whether direct or indirect, is held in each

of the persons by another person or by a group of other persons that are

affiliated persons with respect to each other. For an exception to the

exclusions from the definition of "retail sale" applicable to aircraft,

see subdivision (q) of section eleven hundred eleven of this article.

18. Fulfillment services. Any of the following services performed by

an entity on its premises on behalf of a purchaser:

(i) the acceptance of orders electronically or by mail, telephone,

telefax or internet;

(ii) responses to consumer correspondence and inquiries electronically

or by mail, telephone, telefax or internet;

(iii) billing and collection activities; or

(iv) the shipment of orders from an inventory of products offered for

sale by the purchaser.

(19) Farming. The term "farming" includes agriculture, floriculture,

horticulture, aquaculture and silviculture; stock, dairy, poultry,

fruit, fur bearing animal, graping, truck and tree farming; ranching;

operating nurseries, greenhouses, vineyard trellises or other similar

structures used primarily for the raising of agricultural,

horticultural, vinicultural, viticultural, floricultural or

silvicultural commodities; operating orchards; raising, growing and

harvesting crops, livestock and livestock products, as defined in

subdivision two of section three hundred one of the agriculture and

markets law; and raising, growing and harvesting woodland products,

including, but not limited to, timber, logs, lumber, pulpwood, posts and

firewood.

(20) Commercial horse boarding operation. "Commercial horse boarding

operation" shall have the same meaning that such term has in subdivision

thirteen of section three hundred one of the agriculture and markets

law.

(22) (A) "Prepaid telephone calling service" means the right to

exclusively purchase telecommunication services, that must be paid for

in advance and enable the origination of one or more intrastate,

interstate or international telephone calls using an access number (such

as a toll free network access number) and/or authorization code, whether

manually or electronically dialed, for which payment to a vendor must be

made in advance, whether or not that right is represented by the

transfer by the vendor to the purchaser of an item of tangible personal

property. Such term, except with respect to the tax imposed by section

one hundred eighty-six-e of article nine of this chapter, includes a

prepaid mobile calling service. In no event shall a credit card

constitute a prepaid telephone calling service. If the sale or recharge

of a prepaid telephone calling service does not take place at the

vendor's place of business, it shall be conclusively determined to take

place at the purchaser's shipping address or, if there is no item

shipped, at the purchaser's billing address or the location associated

with the purchaser's mobile telephone number, or, if the vendor does not

have the address or the location associated with the customer's mobile

telephone number, at such address, as approved by the commissioner, that

reasonably reflects the customer's location at the time of the sale or

recharge.

(B) "Prepaid mobile calling service" means the right to use a

commercial mobile radio service, whether or not sold with other property

or services, that must be paid for in advance and is sold for use over a

specified period of time or in predetermined units or dollars that

decline with use in a known amount, whether or not that right is

represented by or includes the transfer to the purchaser of an item of

tangible personal property.

(23) Qualified empire zone enterprise. The term "qualified empire zone

enterprise" shall have the same meaning that such term has in section

fourteen of this chapter for purposes of this article and article

twenty-nine of this chapter.

(24) "Mobile telecommunications service" shall mean commercial mobile

radio service. "Mobile telecommunications service" does not include

prepaid telephone calling service or air-ground radio telephone service

as defined in section 22.99 of title 47 of the code of federal

regulations as in effect on June first, nineteen hundred ninety-nine.

(25) "Commercial mobile radio service" and "mobile service" shall have

the same meanings as in section 20.3 of title 47 of the code of federal

regulations in effect on June first, nineteen hundred ninety-nine, to

wit:

(i) "Commercial mobile radio service." A mobile service that is:

(A)(I) provided for profit, i.e., with the intent of receiving

compensation or monetary gain; (II) an interconnected service; and (III)

available to the public, or to such classes of eligible users as to be

effectively available to a substantial portion of the public; or (B) the

functional equivalent of such a mobile service described in clause (A)

of this subparagraph.

(ii) "Mobile service." A radio communications service carried on

between mobile stations or receivers and land stations, and by mobile

stations communicating among themselves, and includes: (A) both one-way

and two-way radio communications services; (B) a mobile service which

provides a regularly interacting group of base, mobile, portable, and

associated control and relay stations (whether licensed on an

individual, cooperative, or multiple basis) for private one-way or

two-way land mobile radio communications by eligible users over

designated areas of operation; and (C) any service for which a license

is required in a personal communications service under part 24 of title

47 of the code of federal regulations in effect on June first, nineteen

hundred ninety-nine.

(26) "Place of primary use" shall mean the street address

representative of where a mobile telecommunications customer's use of

the mobile telecommunications service primarily occurs, and must be: (i)

the residential street address or the primary business street address of

the mobile telecommunications customer and (ii) within the licensed

service area of the home service provider.

(27)(i) "Mobile telecommunications customer" shall mean either (A) a

person or entity that contracts with a home service provider for mobile

telecommunications services; or (B) if the end user of mobile

telecommunications services is not the contracting party, the end user

of the mobile telecommunications service, but this clause (B) applies

only for the purpose of determining the place of primary use. "Mobile

telecommunications customer" does not include either (A) a reseller of

mobile telecommunications service; or (B) a serving carrier under an

arrangement to serve a mobile telecommunications customer outside the

home service provider's licensed service area.

(ii) "Home service provider" shall mean a facilities-based carrier or

reseller as defined in subparagraph (iv) of this paragraph, with which

the mobile telecommunications customer contracts for the provision of

mobile telecommunications service.

(iii) "Licensed service area" shall mean the geographic area in which

a home service provider is authorized by law or contract to provide

mobile telecommunications service to a mobile telecommunications

customer.

(iv) "Reseller" shall mean a provider who purchases telecommunications

service from another telecommunications service provider and then

resells, uses as a component part of, or integrates the purchased

services into a mobile telecommunications service. "Reseller" does not

include a serving carrier with which a home service provider arranges

for the services to its mobile telecommunications customers outside the

home service provider's licensed service area.

(v) "Serving carrier" shall mean a facilities-based carrier providing

mobile telecommunications service to a mobile telecommunications

customer outside the home service provider's or reseller's licensed

service area.

(28) "Taxing jurisdiction" shall mean any of the several states, the

District of Columbia, or any territory or possession of the United

States, any municipality, city, county, township, parish, transportation

district, or assessment jurisdiction, or any other political subdivision

within the territorial limits of the United States with the authority to

impose a tax, charge, or fee.

* (29) "E85" shall have the same meaning as in subdivision twenty-two

of section two hundred eighty-two of this chapter.

* NB Repealed September 1, 2031

* (30) "B20" shall have the same meaning as in subdivision

twenty-three of section two hundred eighty-two of this chapter.

* NB Repealed September 1, 2031

* (31) "CNG" shall have the same meaning as in subdivision twenty-four

of section two hundred eighty-two of this chapter.

* NB Repealed September 1, 2031

* (32) "Hydrogen" shall have the same meaning as in subdivision

twenty-five of section two hundred eighty-two of this chapter.

* NB Repealed September 1, 2031

(33) Modular home. A one- to three-family residential structure

constructed at the building site from modular home modules, where the

modules are connected and such structure is finished using building

materials or other tangible personal property at the building site, such

modular home conforms to the building and other codes applicable to one-

to three-family site-built homes in the jurisdiction where such building

site is located, and such finished modular home constitutes a capital

improvement. "Modular home" shall not include (i) a structure or portion

of a structure built on-site, whether built by the modular home

installer or another person, using building materials delivered to the

site, even if some of such materials were manufactured, produced, or

assembled off-site, such as, by way of example and not by way of

limitation, concrete blocks, windows, door units, wall or roof panels,

trusses and dormers; (ii) a shed, gazebo, any unattached garage or the

like (even if made or built by a manufacturer of modular home modules);

or (iii) a mobile home.

(34) Transportation service. The service of transporting, carrying or

conveying a person or persons by livery service; whether to a single

destination or to multiple destinations; and whether the compensation

paid by or on behalf of the passenger is based on mileage, trip, time

consumed or any other basis. A service that begins and ends in this

state is deemed intra-state even if it passes outside this state during

a portion of the trip. However, transportation service does not include

transportation of persons in connection with funerals. Transportation

service includes transporting, carrying, or conveying property of the

person being transported, whether owned by or in the care of such

person. Notwithstanding the foregoing, transportation service shall not

include a TNC prearranged trip, as that term is defined in article

forty-four-B of the vehicle and traffic law, that is subject to tax

under article twenty-nine-B of this chapter. In addition to what is

included in the definition of "receipt" in paragraph three of this

subdivision, receipts from the sale of transportation service subject to

tax include any handling, carrying, baggage, booking service,

administrative, mark-up, additional, or other charge, of any nature,

made in conjunction with the transportation service. Livery service

means service provided by limousine, black car or other motor vehicle,

with a driver, but excluding (i) a taxicab, (ii) a bus, and (iii), in a

city of one million or more in this state, an affiliated livery vehicle,

and excluding any scheduled public service. Limousine means any vehicle

with a seating capacity of up to fourteen persons, excluding the driver,

and any vehicle with a seating capacity of between fifteen and twenty

persons, excluding the driver, that has only two axles and four tires.

"Bus" means any motor vehicle with a seating capacity of at least

fifteen persons, excluding the driver, that does not otherwise qualify

as a limousine. Black car means a for-hire vehicle dispatched from a

central facility. "Affiliated livery vehicle" means a for-hire motor

vehicle with a seating capacity of up to six persons, including the

driver, other than a black car or luxury limousine, that is authorized

and licensed by the taxi and limousine commission of a city of one

million or more to be dispatched by a base station located in such a

city and regulated by such taxi and limousine commission; and the

charges for service provided by an affiliated livery vehicle are on the

basis of flat rate, time, mileage, or zones and not on a garage to

garage basis.

(35) Modular home modules. The component sections that will be

installed on-site to construct a modular home, each of which sections is

(i) engineered and manufactured in a factory, (ii) shipped or delivered

to the building site on a truck or other vehicle, (iii) installed at the

site, on a permanent foundation, to become part of the modular home and

(iv) not by itself suitable for occupancy. Every group of modules that

will be installed in this state as a modular home, or, if a modular home

is to be built from a single module, that single module, shall, prior to

shipment from the place where it is made, bear the insignia of approval

issued by the department of state pursuant to the authority of article

eighteen of the executive law and regulations thereunder; and the

department of state shall cooperate with the commissioner and furnish

such information as the commissioner requests to carry out this article

and its purposes. A modular home module shall include tangible personal

property shipped or delivered with the module from the factory by the

manufacturer at the same time the module is shipped or delivered, such

as exterior siding, roof shingles, roof vent pipes, interior trim

pieces, paint, and interior doors, and supplies required and used to

install them, but only if that property (i) was engineered or designed

to be an integral component part of the module, (ii) matches, or is

essential to the functioning of, the module, (iii) was not installed in

the module at the time the module was made only because it would be

damaged during, or interfere with, shipping or delivery of the module to

the building site, (iv) will be permanently installed in the module at

the building site by the manufacturer or by the purchaser of the module

or by the contractor of either of them, (v) is listed in full on the

contract, bill of sale, invoice or other memorandum of price given to

the purchaser or buyer, or in an addendum thereto, true copies of which

the manufacturer shall retain as part of the records required to be kept

by this article and make available on request, and (vi) is included in

the sale price of the module, without any additional charge. A modular

home module shall not include (i) furniture, fixtures, furnishings,

appliances, attachments or similar tangible personal property not

incorporated as component parts of the module at the time of its

manufacture or (ii) building materials or other tangible personal

property used to connect the modules or finish the modular home at the

building site.

(36) New modular home module. A modular home module sold for the first

time at retail.

(37) Electronic news service. (i) A service delivered, furnished or

provided to or accessed by the purchaser electronically or digitally

that meets all of the following conditions:

(A) The service's predominant purpose is the presentation of news

content, which it prominently features;

(B) The service's news content (I) includes general news that is

accessible without use of a search function; (II) is newly published or

updated at least daily unless the service specifies some other interval,

provided, however, that the news content must be newly updated or

published within a twenty-four hour period that precedes or immediately

follows a time when the non-news content is newly published or updated;

and (III) is predominantly purchased from contracted wire services or

written or produced by the employees or engaged independent contractors

of the person providing the service, including, but not limited to,

employees or engaged independent contractors of any affiliate of such

person;

(C) The service is available to the public;

(D) The service holds itself out as a "news service," "newspaper,"

"magazine," "periodical," "journal," "post," or words of similar import

and does not hold itself out as something other than one of such terms

or a term of similar import.

(E) The service has continuity as to its title and the general nature

of its content over time;

(F) The service is not, in whole or in substantial part, a listing,

catalog, database, or compilation;

(G) The only search function the service offers without a

separately-stated, reasonable charge is a search of the service's or of

any of its affiliates' present or past news content. Provided, a service

that satisfies all the clauses of this subparagraph except this clause

may still qualify as an electronic news service for purposes of this

paragraph if the provider of the service can show that the non-news

content available through the search function is merely an incidental

part of the service, including, for example, by showing that the cost to

the person providing the service of any non-news content available

through the search function is less than the cost to that person of

providing the news content available through the service. Provided,

further, that a purchaser's access to the service's search function for

which there is a separately-stated, reasonable charge to the purchaser

shall be treated separately and is not relevant as to whether this

clause is satisfied.

(ii) The following definitions apply to subparagraph (i) of this

paragraph and subdivision (gg) of section eleven hundred fifteen of this

article:

(A) "News content" means the articles, photographs, and video and

audio material concerning general news or specialized news and does not

include listings, advertisements, catalogs, compilations, databases, or

the like.

(B) "Non-news content" means any information other than news content.

(C) "Article" means a prose composition, including commentaries,

reviews, editorials, op-eds, letters to the editor, and reader comments

on articles. The term does not include listings, advertisements,

catalogs, compilations, databases, or the like.

(D) "General news" means matters of general interest and reports of

current events.

(E) "Specialized news" means matters of a specialized interest, such

as legal, mercantile, financial, theatrical, entertainment news,

political, religious, or sporting matters.

(F) "Cap amount" means three hundred percent of the annualized average

daily newsstand price of the three newspapers with the largest total

paid national daily circulation. The commissioner shall determine the

cap amount annually and shall cause it to be published on the

department's website and give other appropriate general notice thereof.

The commissioner shall determine and publish the cap amount annually by

April first based on prices charged during the first week of January of

that year, which cap amount shall apply for the succeeding twelve-month

period commencing June first and ending May thirty-first. The

calculation and publication of the cap amount under this clause shall

not be included within paragraph (a) of subdivision two of section one

hundred two of the state administrative procedure act relating to the

definition of a rule.

(G) "Affiliate" means, with respect to any person, any other person

that, directly or indirectly through one or more intermediaries,

controls, or is controlled by, or is under common control with, such

person, and the term "control" (including the terms "controlled by" and

"under common control with") means the possession, directly or

indirectly, of the power to direct or cause the direction of the

management and policies of such person, whether through ownership of

voting securities, by contract or otherwise.

(38) Electronic periodical. (i) A publication delivered, furnished or

provided to or accessed by the purchaser electronically or digitally

that meets all of the following conditions:

(A) The publication's predominant purpose is the presentation of news

content, which it prominently features;

(B) The publication is published at stated intervals, at least as

frequently as four times a year but no more frequently than weekly, and

is not updated between issues. However, the incidental provision of

additional news content between issues will not prevent the requirement

in this clause from being satisfied. In determining whether the news

content added between issues is incidental, among the factors the

commissioner is to consider is the amount of the news content added

between issues relative to the news content in preceding issues and the

frequency of the provision of additional news content between issues.

Provided that the display of reader comments or letters to the editor

between issues does not affect whether this clause is satisfied.

(C) The publication's news content is purchased from contracted wire

services or written or produced by multiple employees or engaged

independent contractors of the person providing the publication,

including, but not limited to, employees or engaged independent

contractors of any affiliate of such person;

(D) The publication is available to the public;

(E) The publication holds itself out as a "magazine," "periodical" or

words of similar import and does not hold itself out as something other

than a "magazine," "periodical," or words of similar import;

(F) The publication has continuity as to its title and the general

nature of its content over time;

(G) The publication is not, in whole or in substantial part, a

listing, catalog, database, or compilation; and

(H) The only search function the publication offers without a

separately-stated, reasonable charge is a search of the publication's or

of an affiliate's present or past news content. However: (I) the

publication's provision of access, at no additional charge, to a search

engine that, apart from the service, is otherwise available to the

public for free is not relevant as to whether this clause is satisfied;

and (II) the publication's provision of access to a search function for

which there is a separately-stated, reasonable charge to the purchaser

shall be treated separately and is not relevant as to whether this

clause is satisfied.

(ii) For purposes of subparagraph (i) of this paragraph and the

exemption provided for electronic periodicals in subdivision (gg) of

section eleven hundred fifteen of this article, "articles" has the same

meaning as in subparagraph (ii) of paragraph thirty-seven of subdivision

(b) of this section and "news content" means articles, photographs, and

video and audio material devoted to literature, the sciences, the arts,

news, an industry, profession, sport or other field of endeavor, and

does not include listings, advertisements, catalogs, compilations,

databases, or the like.

(c) When used in this article for the purposes of the tax imposed

under subdivision (e) of section eleven hundred five of this article,

the following terms shall mean:

(1) Hotel. A building or portion of it which is regularly used and

kept open as such for the lodging of guests. The term "hotel" includes

an apartment hotel, a motel, boarding house or club, whether or not

meals are served.

(2) Occupancy. The use or possession, or the right to the use or

possession, of any room in a hotel or short term rental unit. "Right to

the use or possession" includes the rights of a room remarketer as

described in paragraph eight of this subdivision.

(3) Occupant. A person who, for a consideration, uses, possesses, or

has the right to use or possess, any room in a hotel or short term

rental unit under any lease, concession, permit, right of access,

license to use or other agreement, or otherwise. "Right to use or

possess" includes the rights of a room remarketer as described in

paragraph eight of this subdivision.

(4) Operator. Any person operating a hotel or short term rental unit.

Such term shall include a room remarketer and such room remarketer shall

be deemed to operate a hotel, or portion thereof, with respect to which

such person has the rights of a room remarketer.

(5) Permanent resident. Any occupant of any room or rooms in a hotel

or short term rental unit for at least ninety consecutive days shall be

considered a permanent resident with regard to the period of such

occupancy.

(6) Rent. The consideration received for occupancy, including any

service or other charge or amount required to be paid as a condition for

occupancy, valued in money, whether received in money or otherwise and

whether received or collected by the booking service, operator or a room

remarketer or another person on behalf of any of them.

(7) Room. Any room or rooms of any kind in any part or portion of a

hotel or short term rental unit, which is available for or let out for

any purpose other than a place of assembly.

(8) Room remarketer. A person who reserves, arranges for, conveys, or

furnishes occupancy, whether directly or indirectly, to an occupant for

rent in a hotel for an amount determined by the room remarketer,

directly or indirectly, whether pursuant to a written or other

agreement. Such person's ability or authority to reserve, arrange for,

convey, or furnish occupancy, directly or indirectly, and to determine

rent therefor, shall be the "rights of a room remarketer". A room

remarketer is not a permanent resident with respect to a room for which

such person has the rights of a room remarketer.

(9) Short term rental unit. A building or portion of it that is used

for the lodging of guests. The term "short term rental unit" includes a

house, an apartment, a condominium, a cooperative unit, a cabin, a

cottage, a bungalow, or a similar furnished living unit, or one or more

rooms therein, where sleeping accommodations are provided for the

lodging of paying occupants, the typical occupants are transients or

travelers, and the relationship between the operator and occupant is not

that of a landlord and tenant, provided that, in a city with a

population of a million or more, the term "short term rental unit" shall

also include any building or portion of a building that is a short-term

rental, as such term is defined in section 26-3101 of chapter thirty-one

of title twenty-six of the administrative code of the city of New York.

It is not necessary that meals are served. A building or portion of a

building may qualify as a short term rental unit whether or not

amenities, including but not limited to daily housekeeping services,

concierge services, or linen services, are provided.

(10) (i) Booking service. A person who, pursuant to an agreement with

an operator or operators, facilitates the occupancy of a short term

rental unit for such operator or operators. A person "facilitates the

occupancy of a short term rental unit" for purposes of this paragraph

when the person meets both of the following conditions: (A) such person

provides the forum in which, or by means of which, the sale of the

occupancy takes place or the offer of such sale is accepted, including a

shop, store, or booth, an internet website, mobile device application,

catalog, or similar forum; and (B) such person or an affiliate of such

person collects the rent paid by a customer to an operator for the

occupancy of a short term rental unit, or contracts with a third party

to collect such rent.

(ii) For the purposes of this article, the term "booking service"

shall not include a "room remarketer" as defined in paragraph eight of

this subdivision. For purposes of this paragraph, persons are affiliated

if one person has an ownership interest of more than five percent,

whether direct or indirect, in another, or where an ownership interest

of more than five percent, whether direct or indirect, is held in each

of such persons by another person or by a group of other persons that

are affiliated persons with respect to each other.

(d) When used in this article for purposes of the tax imposed under

subdivision (f) of section eleven hundred five, the following terms

shall mean:

(1) Active annual member. A member who is not a life member but who

enjoys full club privileges as distinguished from the privileges enjoyed

by a person holding a nonresident membership, an associate membership,

or other partial or restricted membership.

(2) Admission charge. The amount paid for admission, including any

service charge and any charge for entertainment or amusement or for the

use of facilities therefor.

(3) Amusement charge. Any admission charge, dues or charge of roof

garden, cabaret or other similar place.

(4) Charge of a roof garden, cabaret or other similar place. Any

charge made for admission, refreshment, service, or merchandise at a

roof garden, cabaret or other similar place.

(5) Dramatic or musical arts admission charge. Any admission charge

paid for admission to a theatre, opera house, concert hall or other hall

or place of assembly for a live dramatic, choreographic or musical

performance.

(6) Dues. Any dues or membership fee including any assessment,

irrespective of the purpose for which made, and any charges for social

or sports privileges or facilities, except charges for sports privileges

or facilities offered to members' guests which would otherwise be exempt

if paid directly by such guests.

(7) Initiation fee. Any payment, contribution, or loan, required as a

condition precedent to membership, whether or not such payment,

contribution or loan is evidenced by a certificate of interest or

indebtedness or share of stock, and irrespective of the person or

organization to whom paid, contributed or loaned.

(8) Lessor. Any person who is the owner, licensee or lessee of any

place of amusement or roof garden, cabaret or other similar place which

he leases, subleases or grants a license to use to other persons who

make amusement charges or admission charges.

(9) Patron. Any person who pays an amusement charge or who is

otherwise required to pay the tax imposed under such subdivision (f) of

section eleven hundred five.

(10) Place of amusement. Any place where any facilities for

entertainment, amusement, or sports are provided.

(11) Recipient. Any person who collects or receives or is under a duty

to collect an amusement charge.

(12) Roof garden, cabaret or other similar place. Any roof garden,

cabaret or other similar place which furnishes a public performance for

profit, but not including a place where merely live dramatic or musical

arts performances are offered in conjunction with the serving or selling

of food, refreshment or merchandise, so long as such serving or selling

of food, refreshment or merchandise is merely incidental to such

performances.

(13) Social or athletic club. Any club or organization of which a

material purpose or activity is social or athletic.

(14) Honorary member. A membership granted in a social or athletic

club without payment of dues which may provide full or partial club

privileges.

(e) When used in this article for the purposes of the taxes imposed

under subdivision (a) of section eleven hundred five of this article and

by section eleven hundred ten of this article, the following terms shall

mean:

(1) Marketplace provider. A person who, pursuant to an agreement with

a marketplace seller, facilitates sales of tangible personal property by

such marketplace seller or sellers. A person "facilitates a sale of

tangible personal property" for purposes of this paragraph when the

person meets both of the following conditions: (A) such person provides

the forum in which, or by means of which, the sale takes place or the

offer of sale is accepted, including a shop, store, or booth, an

internet website, catalog, or similar forum; and (B) such person or an

affiliate of such person collects the receipts paid by a customer to a

marketplace seller for a sale of tangible personal property, or

contracts with a third party to collect such receipts. For purposes of

this paragraph, a "sale of tangible personal property" shall not include

the rental of a passenger car as described in section eleven hundred

sixty of this chapter but shall include a lease described in subdivision

(i) of section eleven hundred eleven of this article and peer-to-peer

car sharing as described in section nine hundred of the general business

law. For purposes of this paragraph, persons are affiliated if one

person has an ownership interest of more than five percent, whether

direct or indirect, in another, or where an ownership interest of more

than five percent, whether direct or indirect, is held in each of such

persons by another person or by a group of other persons that are

affiliated persons with respect to each other. Notwithstanding anything

in this paragraph, a person who is not otherwise registered pursuant to

section eleven hundred thirty-four of this article is not a marketplace

provider if such person has no physical presence in New York and, for

the immediately preceding four quarterly periods ending on the last day

of February, May, August and November, can show that the cumulative

total gross receipts of sales it has made or facilitated of property

delivered in this state does not exceed five hundred thousand dollars or

that such person has not made or facilitated more than one hundred sales

of property delivered in this state. However, such person may elect to

register as a marketplace provider, and, once registered, will be

subject to the provisions of this article.

(2) Marketplace seller. Any person, whether or not such person is

required to obtain a certificate of authority under section eleven

hundred thirty-four of this article, who has an agreement with a

marketplace provider under which the marketplace provider will

facilitate sales of tangible personal property by such person within the

meaning of paragraph one of this subdivision.